Overview by Cleo Meinicke, Research Associate PILPG NL
Amnesty International urged the ICC to open a formal investigation in Nigeria, “every day you continue to ignore what happens you are losing leverage to deter crimes.”
The OTP continues to assess the admissibility of the case, considering initiated proceedings by the Nigerian government.
The Nigerian government should engage more with civil society, according to Chinonye Edmund Obiagwu and Abiodun Baiyewu-Teru.
The side-event hosted by Amnesty International (AI) was based on its recently published report “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes.” The report highlights the organization’s critical view on the ICC OTP’s preliminary examination in Nigeria and the ability and willingness of the Nigerian government to respond to crimes committed by Boko Haram and Nigerian security forces. The ICC’s preliminary examination was opened eight years ago and is still on-going. The Court identified the commission of core crimes, but AI is of the opinion that “it is time for the OTP to open a formal investigation in Nigeria.”
Netsanet Belay, program director Africa of AI, introduced the report. The report highlights the need for the ICC to take a next step based on information the organization collected on the ability and willingness of the Nigerian government to investigate and prosecute grave crimes committed in Nigeria. AI analyzed official documents in relation to domestic data. Beyond the documents, AI engaged with people, the special board of inquiry and the presidential panel, which shared their sources and documents. They also examined 179 Court documents, as well as reports related to the “mass Boko Haram trials” that started in October 2017. Moreover, AI interviewed detainees and upheld communication and information exchange with the Nigerian authorities.
AI’s report covers two inquiries set up by the Nigerian authorities. The Special Board of Inquiry (SBI) and the Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement (PIP). Despite these efforts by the Nigerian government, AI’s research revealed that the design of these inquiries was never planned or intended to result in criminal investigations or prosecutions. The government was unable to achieve any investigations or prosecutions. Concerning the Boko Haram mass trial, the report displays the arbitrariness of arrests and shows that the majority of those arrested were acquitted. Further, the charges brought against the suspects were for minor offenses rather than the commission of international crimes. Because of these reasons AI argues that there is no real attempt of taking steps by the Nigerian government. “Victims are still awaiting justice, truth is yet to be discovered.”
In response to AI’s findings, Claus Molitor provided insight from the perspective of the ICC. He is a situation analyst in the Jurisdiction, Complementarity and Cooperation Division of the OTP. Mr. Molitor first explained why it takes the OTP so long to conduct the preliminary examination. Nigeria is a very complex situation, as it is an ongoing conflict, where the OTP has several situations or cases to consider. Because there have been efforts by the government, these have to be assessed and evaluated, which takes time. Especially considering limited resources at the OTP. Mr. Molitor mentioned that they have found that crimes are being committed and that the evidentiary threshold is met. Because it is an ongoing conflict, they however have to assess newly committed crimes as well. The OTP is now at the stage to assess admissibility. Since the Nigerian government initiated proceedings, the ICC assesses these at the moment. The Nigerian authorities are helpful and cooperative in the investigation, Mr. Molitor noted. In response to AI’s question for a timeline, Mr. Molitor responded that the ICC does not have set timelines but progressive steps are taken.
The next two speakers provided insights from a local perspective. Abiodun Baiyewu-Teru, who works at Global Rights Nigeria, stressed the question whether Nigeria even has the capacity for forensic investigations into the international crimes. She claimed that Nigeria “perfected the art of motion without movement.” The government set up panels and parties and conducted trials, which are however in her opinion clearly sham trials. People are arrested but there is no fair process and many are tortured into pleading guilty to get out of prison earlier. Furthermore, she criticized that while civil society attempts to work with the government, the government does not extend the level of sincerity back. Members of civil society are often harassed or arrested due to ongoing intimidation in Nigeria. According to Baiyequ-Teru people providing support in the investigation of crimes and to the victims are at risk of being considered an enemy by the government.
Chinonye Edmund Obiagwu, who worked as president of Nigerian National Coalition for the ICC and founded the Legal Defense and Assistance Project (LEDAP) in Nigeria, reiterated Baiyequ-Teru’s point that the government should spend more time on engaging with civil society. Concerning the accusation of sham trials, he provided insights into the trials. His organization provided legal assistance to victims and they published a report to make suggestions for the improvement of these trials. They raised issues and cases, where there were obvious violations of basic rights of victims and a fair trial was precluded. Most victims meet their lawyers only in the courtroom and legal interpretation is not provided. According to Obiagwu the judges do their best but they are not trained or used to those cases. He also agrees with AI that Nigeria shows to be unwilling and unable to prosecute the crimes. There may be willingness on the side of the government, but he argues that there is clearly no ability of the government to prosecute high commanders especially.
Lastly, a video of Hamsatu Allamin was screened. Ms. Allamin is the regional manager of Nigeria Stability and Reconciliation Program and the national executive member and coordinator of Federation of Muslim Women’s Associations in Nigeria. Her video provided an insight into life in Nigeria under the threats of Boko Haram but also by the military. She started her speech with background on the Boko Haram and its uprising and talked about the situation of women in Nigeria, facing slaughtering and arrests, despite the government claiming that Boko Haram is defeated.
When the discussion opened up to the audience Bettina Ambach, Director of the Wayamo Foundation, raised the idea of using milestones to be reached in the future. Mr. Molitor however reacted to this comment that milestones are a good idea but easier said than done. Further questions were raised concerning capacity building to which Mr. Belay and Mr. Obiagwu assured that there are many capacity building initiatives, passionate lawyers and cooperation with organizations such as UNODC. Nevertheless, more capacity building was very much welcomed by the panel.
At the end of the side event a member of the Nigerian government commented that the issue is important to the Nigerian government and that it agrees that capacities have to be built up. In his view there was evidence of political will to hold perpetrators accountable and the government is eager to continue to partner with organizations, such as the Wayamo Foundation.
The side event was concluded with a shared hope that Nigeria will see justice and that participants at next year’s ASP will be able to look back at achievements.